Questions hint judges will uphold law

RICHMOND, Va.— The 4th Circuit Court of Appeals peppered the health reform law’s challengers with intense rounds of questioning on Tuesday, suggesting that it could rule against both Virginia and Liberty University — two of the four cases racing toward the Supreme Court this spring and summer.

Oral arguments in both cases were held back-to-back Tuesday in front of a randomly selected panel of three judges — who all happened to be appointed by Democratic presidents.

Story Continued Below

The panel sharply questioned whether Virginia has a right to sue the federal government, suggesting that if Virginia can sue, so can a state that doesn’t like the Iraq war. The Virginia case was brought by the state’s headline-grabbing attorney general, Ken Cuccinelli.

The judges also questioned Liberty University’s claim that not entering the health insurance market is inactivity that cannot be regulated under the Commerce Clause.

In two hours of arguments — far more time than originally outlined — the judges never brought up what to do if they uphold the ruling that the individual mandate is unconstitutional. While not a sure sign that the panel could rule against the law, it’s a hint that it wasn’t on the judges' minds during the discussions.

The panel appeared sympathetic to the government’s argument that it is using the requirement to buy insurance coverage — the key provision Liberty University and Virginia are contesting — to address what Acting Solicitor General Neal Katyal called a “massive social problem.”

One of the judges, Andre M. Davis, cited a hypothetical situation in which a group of people from Virginia got into a car accident in Maryland and a hospital incurred hundreds of thousands of dollars in medical costs.

“Is it your submission that Congress has no power to address in the aggregate what happens every day?” the judge asked lawyers for Liberty University.

But it’s the vegetable question — broccoli or asparagus, depending on the judge — that continues to be one of the most significant obstacles for the law’s supporters: If it’s OK for Congress to require Americans to buy health insurance, can it require people to buy vegetables or a membership at a health gym because they’re good for you too?

Katyal said the mandate is narrow in that it only regulates how people purchase health care. His argument is based on the premise that all Americans will consume health care at some point in their lives — whether they want to or not.

Walter E. Dellinger, who served as an acting solicitor general under then-President Bill Clinton, expects that question to continue to come up in the cases.

“And the answer is absolutely clear,” he told POLITICO outside the Richmond courtroom. “There’s not a single other product in the world that Congress could require you to purchase just because this statute is upheld. It’s because there’s no other product that people are required by law to provide you for free the way they are for emergency medical treatment.”

The panel was made up of Davis, Diana Gribbon Motz and James A. Wynn Jr. Gribbon Motz was nominated to the bench by Clinton, and Davis and Wynn were nominated by President Barack Obama.